Solving the Puzzle Disability and Family Leave, ADA, Workers Compensation When Employees Are Out of Work: Solving the Puzzle Disability and Family Leave, ADA, Workers Compensation Presented by: Jennifer Chandler Hauge, Esq. June 7, 2006 A Risk Management Webinar

Objectives Assist you with your concerns about managing an employee being “out on leave” Assist you with your concerns about managing an employee being “out on leave” Clarify federal and state law requirements Clarify federal and state law requirements Provide a framework for identifying what the nonprofit’s obligations are towards any employee who is out of work on leave Provide a framework for identifying what the nonprofit’s obligations are towards any employee who is out of work on leave Your questions, experience and concerns… Your questions, experience and concerns…

What Laws Govern? Americans with Disabilities Act and USERRA Americans with Disabilities Act and USERRA Federal: Family and Medical Leave Act Federal: Family and Medical Leave Act  “FMLA” coverage is limited to workplaces with 50+ employees State Family Leave: 11 states State Family Leave: 11 states State leave laws for other reasons State leave laws for other reasons Workers Compensation/Disability leave Workers Compensation/Disability leave Nonprofit’s own policies on leaves of absence Nonprofit’s own policies on leaves of absence

A Big Oops Examples of RISKS Wrongful Discharge in violation of family leave: terminating an employee who should have had her job protected because she was eligible for family leave Wrongful Discharge in violation of family leave: terminating an employee who should have had her job protected because she was eligible for family leave Retaliation: taking disciplinary action against an employee for absenteeism when the employee had a work-related injury and filed a workers compensation claim Retaliation: taking disciplinary action against an employee for absenteeism when the employee had a work-related injury and filed a workers compensation claim

Other Risks Violation of the ADA for failing to negotiate a reasonable accommodation (leave of absence) for an employee Violation of the ADA for failing to negotiate a reasonable accommodation (leave of absence) for an employee Thinking that you CAN’T terminate an employee who is out of work due to: Thinking that you CAN’T terminate an employee who is out of work due to: 1. A temporary disability 2. A work-related injury (workers comp)

Sally Six Weeks Sally has no more sick leave Sally has no more sick leave Sally has a temporary disability Sally has a temporary disability  What leave is she on?  Is her job protected?  What happens to her benefits?  Can her employer hire someone to take her place?

Policy Issues Raised When Employees are on Leave How long is the leave for? How long is the leave for? What happens to group health insurance? What happens to group health insurance? Does the employee have to use other accrued paid leave during the leave of absence? Does the employee have to use other accrued paid leave during the leave of absence? Is there accrual during the leave period? Is there accrual during the leave period? Reinstatement: same position? Reinstatement: same position?  What if the employee is unable to perform her job when she returns?

How Long is the Employee Entitled to Leave? Nonprofit must identify what leave applies: Nonprofit must identify what leave applies:  Employees might not request leave but they are still eligible  Supervisors need to be attuned to leave policies  Nonprofit should send written notice to employees identifying their leave and any rights and obligations during leave

What Leave Applies? FMLA or state family leave? FMLA or state family leave? Does the nonprofit have its own leave policy for non-eligible Family Leave? Does the nonprofit have its own leave policy for non-eligible Family Leave? ADA – obligation to accommodate ADA – obligation to accommodate Disability and workers compensation leave Disability and workers compensation leave  No job protection or requirement to maintain benefits

Tips Don’t wait for the employee to request leave or assume that the employee is eligible for what is requested Written notice to employees out on leave helps to manage their expectations about the impact of leave on their benefits and whether or not they will be able to return to work and under what conditions

Caution: If an employer states in its policy manual that it follows the federal FMLA, it will be held to all the regulatory requirements of the Act

FMLA requirements  Written notice to all employees who request leave, or written designation of leave if not requested - 8 items included  Policy must be contained in handbook  Reinstatement to equivalent position  Documentation of compliance  FMLA does not reduce greater rights afforded by state law

Risk Management Best Practices  Know what laws apply to your nonprofit  Document what leave applies and clarify employees’ rights and obligations  Follow the policies in your handbook  Be consistent in applying policies  Respond to complaints -- resolve internally  No retaliation – objective review before action  Seek advice from legal counsel if necessary

Supervisors Train supervisors on the policies and the need for identifying what type of leave applies Train supervisors on the policies and the need for identifying what type of leave applies Require supervisors to document all leave requests and responses Require supervisors to document all leave requests and responses Get together with supervisors periodically to discuss potential leaves of absence scenarios Get together with supervisors periodically to discuss potential leaves of absence scenarios

Risk Management Leaves of Absence = a Staff Shortage

Worst Case Can the nonprofit accomplish its goals, such as the completion of a specific grant-funded program, with a staff shortage? Can the nonprofit accomplish its goals, such as the completion of a specific grant-funded program, with a staff shortage? What is the back-up plan if certain employees are out on a leave? What is the back-up plan if certain employees are out on a leave?  How long can your nonprofit last without certain employees?  What is the financial impact of an employee being out on leave?  What if several employees are out on leave at once?

Balance Flexibility to staff with risk management for nonprofit When in doubt When in doubt  Confer with legal counsel  Provide leave for the federal 12-week period and document

We Hope You’ll Join us for our Next Webinar: July 12 th Regulating Employees’ Conduct Outside Work Thank you! Please complete the Webinar evaluation. We will send a follow-up containing the link to the Survey Monkey tool.

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